Citation Nr: 21073221 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-15 163 DATE: December 7, 2021 ORDER Request to reopen a claim of service connection for migraine headaches is granted; to this extent only, the appeal is granted. Request to reopen a claim of service connection for an arm disability is granted; to this extent only, the appeal is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a bilateral arm disability, to include a left shoulder disability is remanded. Entitlement to service connection for a left elbow disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to an initial compensable evaluation for recurrent hemorrhoids with skin tags is remanded. Entitlement to an initial compensable evaluation for bilateral Adie's pupil is remanded. Entitlement to a 10 percent evaluation based on multiple, noncompensable, service-connected disabilities under 38 C.F.R. § 3.324 prior to July 2, 2018 is remanded. FINDINGS OF FACT 1. An October 1996 rating decision denied claims for service connection for headaches and arm injury; neither notice of disagreement nor new and material evidence was received within its appeal period. 2. Evidence received subsequent to the October 1996 rating decision is not cumulative of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claims for service connection for headaches and arm injury. CONCLUSIONS OF LAW 1. The October 1996 rating decision which denied claims for service connection for headaches and arm injury is final. 38 U.S.C. § 7105(c) (1994); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1996). 2. The criteria to reopen claims for service connection for headaches and arm disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1979 to March 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from Department of Veterans Affairs (VA) Regional Office (RO)'s rating decisions issued in July 2015 and March 2016. The Veteran did not show for a virtual hearing scheduled for April 2021. The Veteran did not provide cause for missing the hearing. The Veteran has not submitted a motion for a new hearing. The Board deems the hearing request withdrawn. 38 C.F.R. § 20.704 (d). Although the Veteran initially filed a claim for depression, the Veteran has also been diagnosed with adjustment disorder and generalized anxiety disorder. To afford the Veteran the broadest possible scope for his claim of entitlement to a psychiatric disorder, the issue has been recharacterized accordingly to that of entitlement to service connection for an acquired psychiatric disorder. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). Additionally, the record indicates that the Veteran's claim for an arm disability includes a left shoulder disability and possibly a right arm disability. See, e.g., September 2015 VA treatment record (reflecting the Veteran's complaint of left arm pain where she reported an in-service injury to the left arm resulting in chronic pain in the left arm, shoulder, and elbow); a February 2016 VA examination (reflecting the Veteran's report that she injured her right arm in a 1982 car accident where she was on the passenger in a vehicle and was struck by another car on that side). The issue has been recharacterized to that of entitlement to service connection for a bilateral arm disability, to include a left shoulder disability. Clemons, 23 Vet. App. at 6. NEW AND MATERIAL EVIDENCE A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. See 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.104, 20.302, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). To prevail on the issue of service connection there must be evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b) for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service; and service connection may be established by evidence of continuity of symptomatology. 38 U.S.C. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed unless such evidence is inherently incredible or beyond competence of the witness. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Request to re-open a claim of service connection for migraine headaches 2. Request to reopen a claim for service connection for an arm disability In an October 1996 rating decision, the RO denied the Veteran's claims for service connection for headaches and arm injury. The RO found that the Veteran's chronic headaches had existed prior to service and the evidence did not show continued treatment for headaches after service or the headaches had worsened as a result of her military service. As for an arm disability, the RO found that the evidence did not show a chronic arm disability in service or after service. The Veteran did not submit a notice of disagreement or new evidence within the appeal period, and the October 1996 rating decision became final. 38 U.S.C. § 7105 (c) (1994); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1996). The evidence received since the October 1996 rating decision includes a December 2018 VA examination for traumatic brain injury (TBI) indicating that the Veteran has headaches as secondary to a TBI. It also includes a November 2017 VA treatment record which shows a current diagnosis of degenerative joint disease of the acromioclavicular joint with biceps tendinitis, subacromial bursitis, and impingement of the left shoulder. This information is read together with the Veteran's report that she had a long history of problems with her left shoulder beginning with an injury during an obstacle course in basic training in 1983. In addition, a September 2015 VA treatment record reflects the Veteran's complaint of pain in the left arm, left shoulder, and left elbow, which she associated with an injury in the left arm during a basic training. The new evidence is material because it raise a reasonable possibility of substantiating the claims. Accordingly, the request to reopen the claims of service connection for migraine headaches and an arm disability is granted. REASONS FOR REMAND As preliminary matter, the evidence indicates that the Veteran's service treatment records in the claims file may not be complete. During the course of medical treatment, the Veteran reported that she had injured her left arm, left shoulder, and left elbow during a basic training in 1979 as a result of a fall on an obstacle course at Fort Jackson and she had gone home for 3 months, in a cast. See, e.g., April 2015 VA treatment record; July 2015 VA examination; an August 2015 VA treatment record. Further, the Veteran reported that she had another dislocation of the left shoulder and underwent a medical board evaluation, which led to her discharge from the military service. See April 2018 VA treatment record. However, her service records do not contain a record for the initial arm injury in 1979, a separation examination, or documents associated with medical board evaluation. The DD 214 notes that the narrative reason for separation was expiration of service; it is unclear if a Medical Board record does actually exist or not. As such, the Agency of Original Jurisdiction (AOJ) must attempt to obtain the Veteran's complete service treatment and personnel records. Second, the Veteran is now in receipt of social security disability benefits. See April 2018 VA treatment record; December 2018 VA Social Security Administration (SSA) inquiry. The AOJ must obtain the Veteran's SSA records. 1. Service connection for hypertension The claim of service connection for hypertension must be remanded because a July 2015 medical opinion lacks sufficient rationale and records appear to be incomplete. A July 2015 VA examiner provided a negative nexus opinion for hypertension. The Board finds that this opinion is not supported by sufficient rationale. The explanation was that the Veteran did not have a diagnosis of hypertension and most blood pressure values were in the normal range for the last couple of years of active duty. This is not sufficient for rating purpose because service connection can be granted for a disability that is diagnosed post-service. 38 C.F.R. § 3.303 (d). In fact, the evidence of record indicates that the Veteran was diagnosed with and treated for hypertension with HCTZ, as early as in 1996, as reflected in a June 1996 VA medical certificate. The July 2015 VA examiner did not note this record, but only noted an October 2011 private treatment record. In addition to the potentially incomplete service records, the evidence of record indicates that the Veteran's hypertension has been managed by a non-VA primary care physician. See October 2017 VA treatment records. As such, the AOJ must attempt to obtain pertinent private treatment records with proper release authorization by the Veteran. After record development is complete, the AOJ must obtain an addendum opinion on etiology of the Veteran's hypertension. 2. Service connection for a bilateral arm disability, to include a left shoulder disability 3. Service connection for a left elbow disability The Veteran contends that she has a left arm, left shoulder, and left elbow disability due to a fall during an obstacle course in the basic training. September 2015 VA treatment record. Moreover, she reported that she re-injured her shoulder and underwent a medical board evaluation for the disability prior to her discharge. April 2018 VA treatment record. She also indicates that she has a right arm disability due to an in-service motor vehicle accident. February 2016 VA elbow examination. Although treatment records for the basic training injury and discharge records may have not been associated with the claims file (as explained above), her service treatment records indicate that she had a complaint of a dislocated elbow in October 1979, an assessment of tendonitis vs. bursitis with pain in the left elbow in November 1982, and then a car accident in November 1982, followed by complaints of pain in the forehead, neck, and left elbow. A December 1982 service treatment record indicates that she had pain in left trapezius. The Veteran had a VA examination for shoulder and elbow in July 2015 and February 2016. At the July 2015 VA examination, the Veteran reported that she had a fracture in the left upper extremity and left elbow during the basic training in 1979. The examination showed limited range of motion in the shoulder with reported inability to raise her arm overhead. A diagnosis of left shoulder strain was made, but no diagnosis was rendered for her left elbow. A September 2015 VA treatment record indicates that the Veteran had pain in the left arm, left shoulder, and left elbow, and the Veteran submitted a letter from Dr. J.S. stating that she had recurrent moderate left elbow pain since the injury in the basic training. However, at a February 2016 VA examination, the Veteran denied any left elbow pain and reported that her right arm was injured during the in-service motor vehicle accident. Most recently, the Veteran was diagnosed with degenerative joint disease of the acromioclavicular joint with biceps tendinitis, subacromial bursitis, and impingement of the left shoulder and underwent a left shoulder surgery in February 2018. As for the bilateral arm and left shoulder disability, a new VA examination must be scheduled to ascertain if the Veteran has a left and/or right arm disability and obtain a medical etiology opinion on any ascertained arm disability and left shoulder disability. The Board finds that a July 2015 examiner's negative nexus opinion for the left shoulder is inadequate because the examiner did not consider the Veteran's report that she injured her left shoulder in service. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). As for the left elbow disability, a new VA examination must be scheduled to ascertain if the Veteran has a current diagnosis for or functional impairment due to left elbow. 4. Service connection for a cervical spine disability 5. Service connection for a lumbar spine disability The Veteran contends that she has a back and neck disability due to the in-service car accident. A November 1982 service treatment record documents that she had whiplash injury in a car accident. A January 1983 service treatment record indicates that the Veteran had a complaint of pain in the upper and lower back after the car accident in 1982. A July 2014 MRI of the cervical spine showed foraminal narrowing and central canal narrowing in the cervical spine with a complaint of left arm numbness and tingling. An August 2001 private treatment record shows a diagnosis of degenerative changes of the lumbar spine. The Veteran underwent a VA examination for her back and neck disability in December 2015. The examiner provided a negative nexus opinion for the back disability because the examiner found no complaint of back pain in service and no continued treatment until 35 years after separation. The examiner provided a negative nexus opinion for the neck disability also because the examiner found that the neck condition had improved since the whiplash injury and the evidence did not show continued treatment until 33 years after separation. The Board finds that these opinions are inadequate for rating purposes. First, the examiner failed to provide a nexus opinion for the back condition due to an in-service injury, from the basic training or from the car accident. Second, a review of the evidence indicates that the Veteran was assessed with degenerative changes of the lumbar spine as early as 2001 as reflected in an October 2001 private treatment record and she sought treatment for neck pain as early as 2004, much earlier than the examiner had determined. Upon remand, after record development is complete, a new VA examination for the back and neck disability must be scheduled and an etiology opinion must be obtained. 6. Service connection for migraine headaches 7. Service connection for an acquired psychiatric disability Since the Veteran's migraine and psychiatric disability were last adjudicated by the AOJ in the February 2017 statement of the case, the Veteran's claim for residuals of TBI due to the in-service car accident has been granted in a January 2019 rating decision. A December 2018 VA examination for TBI indicates that she has headaches due to the TBI. Here, the Veteran's enlistment examination reflects her report of frequent and severe headaches. A June 1996 private treatment record indicates that she reported her headaches were usually related to her menstrual cycles. Her service treatment records indicate that she frequently sought treatment for her migraine headaches both prior to and after the November 1982 car accident. A veteran is presumed to be in sound condition when entering into military service except for conditions noted on the entrance examination or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto, and that the disease or injury was not aggravated by service. 38 U.S.C. § 1111 ; 38 C.F.R. § 3.304 (b); Cotant v. Principi, 17 Vet. App. 116 (2003). The burden is on VA to rebut the presumption of soundness, by clear and unmistakable evidence, both that the disorder at issue pre-existed service, and was not aggravated by service. Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). A preexisting disease or injury will be considered to have been aggravated by military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 ; 38 C.F.R. § 3.306 (a). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306 (b). Additionally, service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of aggravation by a service-connected disability, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id; see also 38 C.F.R. § 3.310 (b). Upon remand, an addendum opinion addressing both theories of service connection must be obtained. As for the acquired psychiatric disability, a VA examination was conducted in July 2015. It appears that a medical opinion for etiology has not been obtained, and diagnoses of additional psychiatric disability have been provided since the examination. Also as mentioned above, the Veteran is now service-connected for TBI. Upon remand, a new VA examination must be scheduled and an etiology opinion must be obtained. 8. Initial compensable evaluation for recurrent hemorrhoids with skin tags 9. Initial compensable evaluation for bilateral Adie's pupil The Veteran underwent a VA examination for hemorrhoids and eye disability in February 2016 and March 2016, respectively, more than five years ago. Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA's statutory duty to assist includes a thorough and contemporaneous medical examination). Since then, the Veteran has had additional eye disability such as dry eye syndrome, as reflected in a November 2017 VA treatment record. And the last VA treatment record in the claims file dates back to December 2018. The record is incomplete for ascertaining the current severity of the service-connected disabilities. Thus, upon remand, the AOJ must obtain outstanding VA treatment records since December 2018 to the present and schedule a new VA examination for hemorrhoids and eye disability. 10. Entitlement to a 10 percent rating under 38 C.F.R. § 3.324 prior to August 6, 2015 The Veteran is in receipt of the combined rating of 60 percent since July 2, 2018. However, her claim for a 10 percent rating under 38 C.F.R. § 3.324 prior to August 6, 2015 must still be adjudicated. Since this issue is inextricably intertwined with the remanded issues, it will have to be adjudicated together with the remanded issues. Harris v. Derwinski, 1 Vet. App. 180 (1991) The matters are REMANDED for the following action: 1. Obtain the Veteran's complete service personnel and treatment records, to include treatment records for an injury during the basic training, a separation examination, and any documents associated with the reported medical board evaluation. A reply is requested, to include any negative response. See 38 C.F.R. § 3.159(e). 2. Obtain outstanding VA treatment records from December 2018 to the present. 3. Obtain the Veteran's federal records from Social Security Administration. Document all requests for information as well as all responses in the claims file. 4. Ask the Veteran to complete a VA Form 21-4142 for any non-VA clinic where she had treatment for hypertension or any other claimed disabilities at any time since her separation from service. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 5. After the record development is complete, obtain an addendum opinion, with sufficient rationales, from an appropriate clinician as to whether it is at least as likely as not that the Veteran's hypertension began in service; manifested to a compensable degree within one year after separation; or is otherwise related to her service. 6. After record development is complete, schedule the Veteran for a VA examination for her bilateral arms, left shoulder, and left elbow. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner must provide an opinion, with sufficient rationales, as to whether the disability is at least as likely as not related to service, to include an in-service injury during the basic training or in-service motor vehicle accident. If the Veteran is diagnosed with arthritis, the examiner must also opine, with sufficient rationales, whether arthritis at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. 7. After record development is complete, schedule the Veteran for a VA examination for her cervical and lumbar spine disability. The examiner must review the claims file. For each disability, the examiner is asked to provide an opinion, with sufficient rationales, as to: (a) whether the disability is at least as likely as not related to service, including an in-service injury during the basic training or in-service motor vehicle accident; and (b) whether, if arthritis is diagnosed, it is at least as likely as not that the disability (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. 8. After record development is complete, schedule the Veteran for a VA examination for her migraine headaches. The examiner must review the claims file. The examiner must provide an opinion, with sufficient rationales, as to: (a) whether migraine headaches clearly and unmistakably (undebatable) preexist the Veteran's service; (b) If the examiner finds migraine headaches clearly and unmistakably preexisted service, whether it was clearly and unmistakably not aggravated by service; (c) If the examiner finds that migraine headaches either did not clearly and unmistakably preexist service or was not clearly and unmistakably not aggravated by service, the examiner must opine whether it is at least as likely as not related to service. Moreover, the examiner must provide an opinion as to (a) whether migraine headaches are at least as likely as not proximately due to service-connected disability, to include TBI; and (b) migraine headaches are at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected disability, to include TBI. 9. After record development is complete, schedule the Veteran for a VA examination for her acquired psychiatric disability. The examiner must review the claims file. For each diagnosed psychiatric disability, the examiner must provide an opinion, with sufficient rationales, as to: (a) whether the disability is at least as likely as not related to service; and (b) whether it is at least as likely as not proximately due or aggravated, i.e., worsened beyond its natural progression, by service connected disability , to include TBI. 10. After record development is complete, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected hemorrhoids and eye disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. If any additional disability is found, the examiner must provide an opinion as to whether the disability is at least as likely as not related to service or it is at least as likely as not proximately due to or aggravated beyond its natural progression by a service-connected disability. If any visual impairment, such as decrease in visual acuity and defect in visual field or muscle function, the examiner must opine whether the impairment is caused by a service-connected eye disability. All opinions must accompany sufficient rationale. 11. Readjudicate the claims, to include the claim under 38 C.F.R. § 3.324. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Taylor The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.